These SaaS Terms and Conditions (“SaaS Terms”) are between OnSiteIQ Inc. (“OnSite”) and the customer identified in the Sales Orders (“Customer”) that reference these SaaS Terms (each, an “Order”). These SaaS Terms govern OnSite’s provision, and Customer’s access to and use of, the SaaS Services purchased by Customer as described in the Order. OnSite and Customer may be collectively referred to herein as the “Parties” or individually as a “Party.
1.1. “Authorized User” means a person authorized by Customer to access and use the SaaS Services pursuant to the applicable Order. An Authorized User may only include: (a) an individual who is an employee of Customer or a Customer Subsidiary, (b) a trade contractor or design professional retained by Customer or a Customer Subsidiary employed with regard to a Project Site, or (d) another individual or entity that is identified in an Order.
1.2. “Customer Data” means all Visual Data and any Customer-proprietary data (including any Customer Confidential Information) provided or made available to OnSite hereunder to enable the provision of the SaaS Services.
1.3. “Customer Subsidiary” means an entity that owns or leases a Project Site and that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Customer.
1.4. “Documentation” means the technical materials provided by OnSite to Customer in hard copy or electronic form describing the use and operation of the SaaS Services.
1.5. “OnSite Technology” is OnSite’s proprietary software and technology provided as part of the SaaS Services.
1.6. “Data Capture Services” means the collection of Visual Data by technicians engaged by OnSite or its affiliates in the areas of a Project Site at the times specified in an Order.
1.7. “Post Term Data Storage” means the additional time that Customer has elected to purchase for OnSite to store Customer Data following termination of the SaaS Terms, as set forth in the Order.
1.8. “Project Sites” are the physical structures and construction sites identified in an Order or otherwise specified by Customer to OnSite or its affiliates from time to time.
1.9. “SaaS Fees” means the fees for the SaaS Services specified in each Order, including the cost of thumb drives, portable hard drives, or CD’s used to deliver Visual Data Backup to the Customer.
1.10. “Saas Services” means the SaaS-based services provided by OnSite which include: (a) geo-localizing Visual Data through the use of OnSite Technology using Customer’s floor plans and blueprints; (b) making the geo-localized Visual Data available to Authorized Users through a website operated and maintained by OnSite; and (c) providing Visual Data Backup and any other related services specified in an Order.
1.11. “Visual Data” means the raw 360-degree photographic images captured via the Data Capture Services prior to geo-localizing utilizing the OnSite Technology.
1.12.“Visual Data Backup” means a backup copy of all Visual Data pursuant to an Order.
2. OnSite’s Services.
2.1. OnSite’s Services. OnSite’s SaaS Services help building owners, investors and construction companies manage and analyze imagery and other visual documentation relating to construction sites and buildings.
3. Provision of the Services. OnSite’s SaaS Services are accessible via the OnSite Technology using a website provided by OnSite. Subject to the terms and conditions of these SaaS Terms, including Customer’s payment of all SaaS Fees due under these SaaS Terms, OnSite shall provide Customer with the SaaS Services described herein and in an Order. As part of its ongoing mission to improve the SaaS Services, OnSite may modify the SaaS Services, including updating the functionality and user interfaces for the OnSite Technology, and/or the Documentation from time to time in its sole discretion, and will use reasonable efforts to notify Customer of any material modifications.
3.1. SaaS Services include:
- 3.1. SaaS Services include:
- 3.1.1. geo-localizing the Visual Data utilizing floor plans and blueprints provided by Customer;
- 3.1.2. making the geo-localized Visual Data available for use by Customer via OnSite’s website; and
- 3.1.3. providing Visual Data Backup and related services specified in an Order.
3.2. Maintenance and Support Services. OnSite shall provide Customer with updates, upgrades, enhancements, and any other improvements that OnSite generally offers to other subscribers of the SaaS Services. OnSite will use commercially reasonable efforts to correct all reproducible errors with the OnSite Technology reported by email from Customer to OnSite. The fees for any maintenance and support services as described in this Section are included in the SaaS Fees. OnSite Support can be reached at ‘firstname.lastname@example.org’.
4. Customer Responsibilities.
4.1. User Accounts. Customer will designate Authorized User accounts for each of its Authorized Users and, subject to law or other regulation, may change or delete access or service credentials for any of its Authorized Users. Customer shall be responsible for the accuracy, quality, and legality of the Customer Data and the means by which Customer acquired it. Customer will be responsible for all acts and omissions of its Authorized Users. Customer and its Authorized Users are collectively referred to herein as “Customer”.
4.2. Requirements. Customer shall be responsible for obtaining and maintaining, at Customer’s sole expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer to access the OnSite Technology from the Internet. Customer shall cooperate with OnSite in setting up and configuring the SaaS Services, including by providing: (a) accurate and current floor plans and blueprints updated throughout the term of these SaaS Terms; (b) the necessary dates (for each site documentation) to fulfill its obligations herein; (c) a “construction start and complete” date, as well as any other information reasonably requested by OnSite; and (d) accurate and current construction schedules updated throughout the term of these SaaS Terms
4.3. Passwords. Customer acknowledges that Customer’s access information, including Authorized User IDs and passwords, will be Customer’s “key” to the SaaS Services; accordingly, Customer will be responsible for maintaining the confidentiality of such access information.
4.4. Notice of Unauthorized Access. Customer shall use commercially reasonable efforts within its control to prevent unauthorized access to, or use of, the SaaS Services and OnSite Technology, and will notify OnSite promptly of any unauthorized use known to Customer.
5. Fees, Pricing, and Payments.
5.1. Fees. Customer will pay all SaaS Fees specified in Orders. Except as otherwise specified herein or in an Order:
- 5.1.1. SaaS Fees are based on the total square footage subscriptions purchased by Customer in an Order;
- 5.1.2. payment obligations are non-cancelable;
- 5.1.3. SaaS Fees paid are non-refundable; and
- 5.1.4. quantities purchased cannot be decreased during the relevant subscription term set forth in the Order.
5.2. Subscriptions. Unless otherwise provided in the applicable Order, licenses to access and use the SaaS Services are purchased as subscriptions. Additional Authorized User subscriptions may be added during a subscription term at no extra fees and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
5.3.Taxes. The SaaS Fees are exclusive of all taxes, duties, tariffs, assessments, export and import fees, or other similar charges arising in connection with the SaaS Services which are Customer’s responsibility. Customer shall make all payments of the SaaS Fees to OnSite without reduction for any such taxes.
6. Invoicing and Payment Terms.
6.1. Payment Terms. Pricing, the SaaS Fees, rates, and related provisions for products and services are specified in an Order. Unless otherwise specified in the applicable Order:
- 6.1.1. OnSite will invoice Customer in advance;
- 6.1.2. invoiced charges are due on receipt; and
- 6.1.3. Customer is responsible for providing complete and accurate billing and contact information and notifying OnSite of any changes.
6.2. Overdue Charges. If any invoiced amount is not paid by the due date, then without limiting OnSite’s rights or remedies: (a) the overdue invoice may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) OnSite may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 6.1.
6.3. Temporary Limitation of Access and Use Rights. If any SaaS Fees are thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts for which OnSite has been authorized to charge Customer’s credit card), OnSite may, without limiting OnSite’s other rights and remedies, accelerate Customer’s unpaid SaaS Fee obligations so that all such obligations become immediately due and payable, and/or suspend SaaS Services to Customer until such amounts are paid in full. OnSite will provide at least five (5) business days advance notice prior to suspending a Customer account.
6.4. Payment Disputes. In its sole discretion, OnSite may refrain from exercising its rights under Section 6.2 or 6.3 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently with OnSite to resolve the dispute.
6.5. Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by OnSite regarding future functionality or features.
7. Term and Termination.
7.1. Term. These SaaS Terms commence on the effective date of the initial Order and, unless terminated earlier in accordance with these SaaS Terms, continue until all subscriptions for the SaaS Services have expired or been terminated pursuant to these SaaS Terms and the applicable Orders.
7.2. Termination. A Party may terminate these SaaS Terms and/or an Order for cause if: (a) a material breach remains uncured after thirty (30) days written notice to the other Party; or (b) the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event of a termination under this Section, OnSite may elect, in its sole discretion to continue these SaaS Terms with respect to each ongoing subscription set forth in the applicable Order(s) until the same has expired.
7.3. Refund or Payment upon Termination. If these SaaS Terms and the applicable Order(s) are terminated by Customer in accordance with Section 7.2, OnSite will refund Customer any prepaid SaaS Fees covering the remainder of the term of all Orders after the effective date of termination on a prorated basis. If these SaaS Terms and the applicable Order(s) are terminated by OnSite in accordance with Section 7.2, Customer will pay any unpaid SaaS Fees covering the remainder of the term of all Orders. In no event will termination relieve Customer of its obligation to pay any SaaS Fees payable to OnSite for the period prior to the effective date of termination.
7.4. Effect of Termination; Survival. Notwithstanding any other provision of this Section or these SaaS Terms, upon expiration or termination of these SaaS Terms and the applicable Order(s): (a) all subscriptions and licenses granted by OnSite under these SaaS Terms and such Order(s), and OnSite’s obligation to provide, and Customer’s right to access and use, the SaaS Services and OnSite Technology, will immediately terminate; (b) Customer Data will be returned or deleted pursuant to Section 7.5.
7.5. Customer’s Data Portability and Deletion. Unless the applicable Order contains a Post Term Data Storage purchase, upon written notice from Customer made within thirty (30) days after the effective date of termination or expiration of these SaaS Terms and the applicable Order(s), OnSite will make Customer Data available for storage pursuant to the applicable Order(s) and the Post Term Data Storage provisions therein. After that thirty (30)-day period, OnSite has no obligation to store, maintain, or provide Customer’s Data, and will thereafter delete or destroy all Customer Data in its systems, possession, and/or control, unless prohibited by law, as provided in the Documentation.
8. License Grant and Restrictions.
8.1. Rights Grant. Subject to and conditioned upon Customer’s compliance with these SaaS Terms, OnSite grants to Customer a non-exclusive, non-transferrable, non-sublicenseable, revocable right to access and use the SaaS Services solely in connection with Customer’s internal business use during the subscription term of the applicable Order and, if applicable, during the Post Term Data Storage set forth in an Order. OnSite reserves all rights not expressly granted hereunder.
8.2. Restrictions. Customer shall not permit any person, including its Authorized Users, to: (a) copy, reproduce, modify, translate, adapt, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any OnSite Technology; (b) use, evaluate or view any OnSite Technology or SaaS Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure, or any portion thereof, which performs functions similar to the functions performed by any OnSite Technology or SaaS Services; (c) use OnSite Technology or the SaaS Services in violation of these SaaS Terms; (d) use any OnSite Technology or SaaS Services to violate any law or regulation; (e) rent, sell, lease, sublicense, loan, transfer, or distribute the OnSite Technology; (f) use any OnSite Technology or SaaS Services in any other manner for the benefit of or to provide services for a third party, unless expressly permitted by an Order; or (g) remove, obscure, or alter any copyright notice, trademark, logo, trade name, or other proprietary rights notice affixed to or contained within any OnSite Technology or SaaS Services. A breach of this section constitutes a material breach of these SaaS Terms.
9. Third Party Components and Data Sets.
9.1. The OnSite Technology may contain other software, data or components that are either owned by a third party or in the public domain (collectively, “Third Party Components”). For purposes of these SaaS Terms, such Third Party Components are subject to their own license terms and the applicable flow-through provisions which allow OnSite, as necessary, to provide the Third Party Components to Customer.
9.2. OnSite warrants that it has obtained all necessary licenses to provide the Third Party Components to Customer and that throughout the performance of the SaaS Services, OnSite shall comply with the terms and conditions of all such licenses and applicable flow-through provisions which are or may be applicable to such Third Party Components. A listing of such Third Party Components and their applicable license terms is available from OnSite upon written request.
9.3. It is Customer’s responsibility to provide OnSite, at Customer’s sole expense, with access to any proprietary third party data sets that Customer requires for OnSite to use in connection with the SaaS Services. Customer warrants that the terms and conditions applicable to any such third party data sets permit Customer to make such data available to OnSite for the purposes contemplated hereby. The SaaS Services (including, for the avoidance of doubt, all OnSite Technology and Documentation, but excluding all Customer Data) and all modifications, improvements, upgrades, derivative works, and feedback made by either Party related to any of the foregoing, and all worldwide intellectual property rights in any of the foregoing, are the exclusive property of OnSite and its suppliers. All rights in and to the SaaS Services not expressly granted to Customer in these SaaS Terms are reserved by OnSite and its suppliers. The rights and obligations set forth in this Section shall survive termination of these SaaS Terms.
10. Proprietary Rights
10.1. Rights in Customer Data. Customer shall own all right, title, and interest in and to Customer Data, including all intellectual property rights therein. Customer grants to OnSite (which shall for this purpose include OnSite’s third party technology contractors and vendors who have a need to access or use the Customer Data to enable the provision of the Services) a non-exclusive, royalty-free license to access and use such Customer Data for the sole purposes of providing the SaaS Services to, and improving the SaaS Services for, Customer. Notwithstanding anything to the contrary herein, OnSite shall have the right to collect and analyze aggregated, de-identified data relating to the provision, use, and performance of the SaaS Services (“Aggregated Data”), and OnSite shall be free (during and after the term of these SaaS Terms) to (a) use Aggregated Data to improve and enhance the SaaS Services and for other development, diagnostic, and corrective purposes in connection with the SaaS Services and any other OnSite offerings, and (b) disclose Aggregated Data solely in aggregate and anonymized form in connection with its business. The Parties agree that the rights and obligations set forth in this Section shall survive the termination of these SaaS Terms.
11.1. Definition. “Confidential Information” means any information of a Party (including third party information under the control of a Party) that is disclosed by a Party to the receiving Party in connection with the Agreement that (a) is marked confidential, proprietary or with a similar legend, or (b) is treated as confidential by the disclosing Party and would reasonably be understood to be confidential by the receiving Party, whether or not so marked. Confidential Information includes technical data, trade secrets, know-how, research, product plans, products, services, software, developments, inventions, processes, formulas, algorithms, data and databases, technology, designs, drawings, engineering, hardware configuration information, and any other confidential or proprietary business information disclosed to the receiving Party by the disclosing Party, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment. OnSite’s Confidential Information includes all OnSite Technology and pricing. Customer’s Confidential Information includes all Customer Data.
11.2. Exclusions. Notwithstanding Section 12.1, information received by a receiving Party shall not be construed as Confidential Information which: (a) is now available or becomes available to the public without breach of the Agreement; (b) is lawfully obtained by the receiving Party from a third party without a duty of confidentiality; (c) is known to the receiving Party prior to such disclosure; or (d) is, at any time, developed by the receiving Party independent of any such disclosure(s) from the disclosing Party as evidenced by the receiving Party’s written records.
11.3. Non-Use and Non-Disclosure. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any third party (other than the receiving Party’s employees, contractors, subcontractors, vendors, directors, officers, attorneys, outside advisors, or agents who have a need to know the Confidential Information in connection with the intended business purpose related to the Agreement (“Representatives”), and the receiving Party and its Representatives may only use the disclosing Party’s Confidential Information for the intended business purpose related to the Agreement. Both Parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own Confidential Information of like importance, but shall at least use reasonable care. Both Parties agree that their Representatives with access to any Confidential Information shall be obligated to protect the Confidential Information to the same or greater degree as required under this Section. It is understood that said Confidential Information shall remain the sole property of the disclosing Party unless otherwise expressly set forth herein.
11.4. Disclosure Required by Law. Notwithstanding Section 12.3, a receiving Party may disclose the other Party’s Confidential Information if required by law, regulation, or a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving Party must give the disclosing Party prompt written notice to allow for a reasonable effort by the disclosing Party to obtain a protective order prior to disclosure, unless such prior notice is prohibited by applicable law or regulation.
11.5. Return of Confidential Information. At the disclosing Party’s request, the receiving Party shall return to the disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information in the receiving Party’s possession or under its control.
11.6. Pricing Confidentiality. All pricing terms (including pricing rates and information) relating to the Agreement are the confidential and proprietary Information of OnSite and may not be shared by Customer with any third party
11.7. Survival. The Parties’ obligations regarding Confidential Information shall survive the expiration or earlier termination of the Agreement and continue for a period of three (3) years from the date of expiration or termination.
12.Representations and Warranties
12.1. Services Warranty. OnSite warrants that Customer: (a) shall have access to the OnSite Technology and all geo-localized Visual Data to be uploaded to the Onsite Technology pursuant to any Order hereunder within forty eight (48) hours of OnSite’s completing the Visual Data Collection at the applicable Project Site as provided herein (the “Processing SLA”); and (b) shall have access to the OnSite Technology and all geo-localized Visual Data described herein or in any Order hereunder shall be available to Customer 24 hours a day, 7 days a week, except for (x) scheduled service interruptions lasting no more than eight (8) hours of which Customer is given prior notice, or (y) no more than three (3) unscheduled service interruptions, each lasting no more than two (2) consecutive hours (collectively, the “Availability SLA”). For each breach of the Processing SLA or the Availability SLA, the SaaS Fees specified in the applicable Order shall be abated from the time the breach commences until the time that the breach has been fully cured.
12.2. Customer Data Warranty. Customer represents and warrants that any Customer Provided Data hosted by OnSite as part of the SaaS Services shall not: (a) infringe, misappropriate, or otherwise violate any copyright, trade secret, patent, trademark, or other intellectual property right of any third party including any architect, engineer or designer; (b) contain any viruses, worms or other malicious code designed to damage OnSite’s systems; or (c) be unlawful or otherwise violate the rights of a third party. Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Notwithstanding the foregoing, OnSite shall back up the Visual Data during the term of the applicable Order. Within fourteen (14) days following the earlier to occur of (i) the completion of the SaaS Services in the applicable Order, or (ii) the expiration or earlier termination of these SaaS Terms, OnSite shall deliver to Customer a Visual Data Backup for the applicable Order (or for all Orders in the event of the expiration or earlier termination of these SaaS Terms), and Customer shall reimburse OnSite for the reasonable cost of the media used to deliver the Visual Data Backup to the Customer within thirty (30) days of receipt of an invoice therefor. The Parties agree that their obligations assumed in the immediately preceding sentence shall survive the expiration or earlier termination of these SaaS Terms.
12.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.1 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SAAS SERVICES AND ANY OTHER MATERIALS PROVIDED BY ONSITE TO CUSTOMER IN CONNECTION WITH THE SAAS SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT IN PART, THE FUNCTIONALITY ASSOCIATED WITH THE SAAS SERVICES IS DEPENDENT UPON CUSTOMER OR THIRD PARTY DATA SOURCES AND TECHNOLOGY, AND THAT UPDATES TO SUCH DATA SOURCES OR TECHNOLOGY MAY AFFECT THE SAAS SERVICES IN A MANNER BEYOND ONSITE’S CONTROL. ONSITE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SAAS SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.
13. Limitations of Liability.
13.1. WAIVER OF INDIRECT DAMAGES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THESE SAAS TERMS OR THE SAAS SERVICES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. DIRECT DAMAGES. EXCEPT FOR ONSITE’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14, ONSITE’S AND ITS AFFILIATES’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE SAAS TERMS OR THE SAAS SERVICES SHALL BE LIMITED TO THE SAAS FEES ACTUALLY PAID BY CUSTOMER FOR THE SAAS SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE SAAS TERMS.
14.1. OnSite Indemnity. OnSite shall indemnify, defend and hold harmless Customer, its employees, and agents from any losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, arising out of any third party claims, demands, and suits (“Losses”) to the extent based on a claim that the use of the OnSite Technology by Customer in accordance with the Documentation infringes any intellectual property right of any third party.
14.2. Exclusions. Notwithstanding Section 14.1, OnSite shall have no indemnification obligations for any infringement claim to the extent it results from: (a) Customer’s modification of the OnSite Technology; (b) unauthorized or unlicensed use of the OnSite Technology permitted by Customer; (c) the combination, operation, or use of any OnSite Technology by with equipment, devices or software not supplied by OnSite, to the extent such a claim would have been avoided if the OnSite Technology was not used in such combination; or (d) failure of Customer to use updated or modified OnSite Technology made available by OnSite to avoid infringement.
14.3. Sole Remedy. IIf Customer’s use of the OnSite Technology is, or in OnSite’s opinion is likely to be, enjoined due to a claim of infringement, OnSite may, at its sole option and expense: (a) procure for Customer the right to continue using such OnSite Technology under the terms of these SaaS Terms; (b) replace or modify such OnSite Technology so that it is non-infringing and substantially equivalent in function; or (c) if options (a) and (b) above cannot be accomplished despite OnSite’s reasonable efforts, then OnSite may terminate these SaaS Terms and the applicable Order(s), and refund the pro-rated portion of any pre-paid SaaS Fees attributable to any unused SaaS Services. This Section sets forth OnSite’s sole and exclusive obligations, and the Customer’s sole and exclusive remedies, with respect to infringement of any industrial or intellectual property rights of any kind.
14.4. Customer Infringement Indemnity. Customer shall indemnify, defend and hold harmless OnSite, its employees, and agents from any Losses to the extent based on: (a) the material breach by Customer of its representations, warranties or covenants under these SaaS Terms; or (b) a claim that any Customer Data infringes or misappropriates any intellectual property right of any third party or violates any applicable law.
15. Government Ordered Work Stoppage. Notwithstanding any term of these SaaS Terms, in the event Customer is unable to utilize the SaaS Services due to government mandated work restrictions (“Government Ordered Work Stoppage”), until the Government Ordered Work Stoppage is lifted, the Parties agree to suspend OnSite’s obligations to provide the SaaS Services and extend the term of the applicable Order(s) by the number of days the Government Ordered Work Stoppage is in effect.
16.1. Governing Law and Jurisdiction. These SaaS Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any legal action or proceeding arising under these SaaS Terms shall be brought exclusively in the federal or state courts located in New York, New York and the Parties hereby consent to personal jurisdiction and venue therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these SaaS Terms.
16.2. Relationship of Parties. The Parties are independent contractors and these SaaS Terms shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
16.3. Equitable Relief. Customer agrees that the SaaS Services (including, for the avoidance of doubt, the OnSite Technology and Documentation) contain valuable trade secrets, proprietary information, and intellectual property of OnSite, that any actual or threatened breach by Customer of its obligations with respect to OnSite’s intellectual property rights shall constitute material breach of these SaaS Terms and immediate, irreparable harm to OnSite for which monetary damages would be an inadequate remedy. In such case, OnSite shall be entitled to seek immediate injunctive relief, in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
16.4. Force Majeure. Except for payment obligations, neither Party shall be deemed to have breached any provision of these SaaS Terms as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, third party network failures, acts of civil or military authorities, civil disturbances, pandemic, wars, terrorism, energy crises, fires, interruptions in third party telecommunications or Internet equipment or services, other catastrophes, or any other occurrences which are beyond such Party’s control and could not have been reasonably anticipated by such Party.
16.5. Assignment. Neither Party shall assign or otherwise transfer these SaaS Terms to a third party without obtaining the prior written consent of the other Party, and any attempted assignment or transfer in violation of the foregoing shall be null and void; provided, however, that: (a) Customer may assign these SaaS Terms in their entirety to any affiliate of Customer or, if the Order(s) which these SaaS Terms incorporate are for only one (1) Project Site, in connection with a sale of all or substantially all of its direct or indirect interest in such Project Site, in each case, without the consent of OnSite; and (b) OnSite may assign these SaaS Terms in connection with a merger or a sale of all or substantially all of its assets without the consent of Customer, provided that notice of any such assignment is provided to the other Party within ten (10) days following such assignment. These SaaS Terms shall be binding on all successors and permitted assignees of the Parties.
16.6. Severability. If any provision of these SaaS Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these SaaS Terms shall remain enforceable and the invalid or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
16.7. Waiver. The failure of either Party to enforce at any time the provisions of these SaaS Terms, or the failure to require at any time performance by the other Party of any of the provisions of these SaaS Terms, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of these SaaS Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
16.8. Entire Agreement. These SaaS Terms constitute the entire agreement of the Parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of these SaaS Terms shall be binding unless in writing and signed by duly authorized representatives of the Parties. Whenever the words “include,” “includes,” or “including” are used in these SaaS Terms, they shall be deemed to be followed by the words “without limitation.”
16.9. Notices. All notices required or permitted under these SaaS Terms shall be in writing and delivered by confirmed facsimile transmission, confirmed email transmission, by courier or overnight delivery service, or by certified mail, and in each instance shall be deemed given upon receipt. All communications shall be sent to the addresses set forth in the Order or to such other address as may be specified by either Party to the other in accordance with this Section.
16.10. Authorization Each Party hereby represents and warrants to the other that all necessary action has been taken to enter these SaaS Terms and that the person signing an Order on its behalf has been duly authorized to do so.
16.11. Use of Logo Customer grants OnSite during the term of these SaaS Terms and thereafter a non-exclusive license to use Customer’s name and logo in OnSite marketing materials such as press releases, case study briefs/project summaries, OnSite website or brochures. This license shall be perpetual and irrevocable for such use on all materials distributed and or printed but not yet distributed prior to termination and revocation of said license; said license shall remain in effect unless and until Customer shall terminate and revoke the same by giving OnSite 60 days advance written notice thereof whereupon at the end of said 60 days the license shall be deemed terminated.